United Industrial Syndicate, Inc. v. Weismann 2 A.D.2d 663

Insofar as the order appealed from allows the examination of defendants Weismann, Devine and Frankenstein, it is unanimously affirmed. The right to refuse to answer questions on the ground that it might tend to incriminate is a personal one and may be claimed at the time the questions are asked (Heit & Weisenthal v. Licht, 218 App. Div. 753). Insofar as the order denies an examination of the corporate defendant, it is unanimously reversed and an examination is allowed as to items 1 to 44, inclusive. No specific objection is made as to any particular item, but it is urged that no further examination is necessary, since the corporate defendant was examined before trial in a prior action and one of its officers was extensively cross-examined at the trial. The pleadings and issues in the present action are not the same as in the prior action which was tried six years ago. In the circumstances there is no reason why plaintiff should be limited to the testimony given by the corporate defendant on the prior examination. The date for the examination to proceed shall be fixed in the order. Settle order on notice. Concur — Botein, J. P., Rabin, Cox, Frank and Valente, JJ.